BUSSEY v. ANGLIA HEATING – Withstanding the broadsides?

BUSSEY v. ANGLIA HEATING – Withstanding the broadsides?

His Honour Judge Yelton on 12th May 2017 handed down judgment in this case. The action was a fatal mesothelioma claim. The deceased, Mr Bussey, was employed by the Defendants as a plumber carrying out predominantly domestic work in the period 1965 to 1968. In particular, Mr Bussey worked on the installation of new boilers and was required to handle both asbestos rope and asbestos cement flue pipes. He had to cut both the rope and flue pipes. However, any work involving asbestos exposure was intermittent and for short periods only.

In the action, the Claimant (his widow) alleged that the exposure was foreseeably hazardous by contemporaneous standards of knowledge and that, in particular, it exceeded the levels in the guidance issued by the Factories Inspectorate in TDN13 of 1969.

The Judge considered the expert evidence , Mr Brady on behalf of the Claimant and Mr Glenn, on behalf of the Defendants ,and found that the exposure did not exceed the levels in TDN13 of 1969. His Honour Judge Yelton did not accept that Mr Brady’s estimations of high levels of exposure for asbestos rope and for sweeping up after the completion of the works, taken from literature, were comparable to the deceased’s likely exposure. The exposure was either to chrysotile or amosite, and under TDN13 the relevant level would be 2 fibre/ml for 4 hours. Having rejected any exposure above the level of 4 fibre/ml and having found that the exposure was for minutes only, it followed inevitably that it could not have exceeded the levels in TDN13 of 1969.

The Claimant’s other argument was that even if the Judge found the levels did not exceed those in TDN13 of 1969, they should be found to amount to a breach of duty notwithstanding the decision in Williams v. The University of Birmingham. The Claimant went so far as to suggest that the decision in Williams was per incuriam, which the Judge described as being “bold”.

The relevant period of exposure pre-dated the publication of TDN13, but nonetheless the Judge considered that it would be “perverse” to consider that any lower level of exposure would be relevant for the purposes of assessing reasonable foreseeability of risk. The Judge considered himself bound by the decision in Williams which could not be distinguished, and indicated that any argument that the decision was per incuriam should be addressed to the Court of Appeal.

The decision in Williams has made it significantly more difficult for Claimants to recover damages in relation to asbestos exposures after 1965. The game change in this respect, however, was not necessarily Williams, but rather the decision of the Supreme Court in Baker v. Quantum. In Baker v. Quantum, a bare majority of the Supreme Court considered, not following Larner v. British Steel, that where a word in health and safety legislation referred to safety or risk of injury, the term should be construed in accordance with knowledge contemporaneous at the time of the relevant events as opposed to applying an objective approach which would bring current day knowledge into play.

In practical terms, the approach in Larner made it impossible for a Defendant to deny liability in any case to which the Asbestos Regulations 1969 applied, provided more than minimal exposure was proved , because of the definition of asbestos dust within the Regulations at Regulation 2(3):

“References in these Regulations to asbestos dust shall be taken to be references to dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons.”

Therefore, if exposure sufficient to increase the risk of mesothelioma to a material extent was proved (the causation test within Section 3 of the Compensation Act 2006) then applying Lana it would inevitably follow that there had been a breach of the Asbestos Regulations 1969.

All this was changed by Baker v. Quantum, which made it possible to argue that the exposure would not have been recognised as being foreseeably hazardous at the material time.

The decision in Williams is authority for the proposition, certainly prior to 1976, that the levels within TDN13 of 1969 are the best indication of levels which at the material time would be regarded as reasonably safe.

Not surprisingly, this decision has proved unpopular for those advising Claimants and several possible attacks upon it have been suggested, some of which were deployed in the Bussey case. The potential arguments appear to be as follows:

The levels in TDN13 of 1969 were based on epidemiology relating to the risk of asbestosis and, as shown in hindsight, to be unsustainable. This is correct, but this was the only epidemiology available at the time. There does not appear to have been any significant criticism of the levels at the time they were introduced (other than from the asbestos industry which considered them to be too low). They were used by the Factories Inspectorate and the Health & Safety Executive over a period of years without criticism.

The guidance was only to inspectors so as to inform when they should prosecute, and it is specifically indicated in TDN13 that ultimately the interpretation of Regulation 2(3) is a matter for the Courts. Again correct, but there was no other guidance available and no decision of the Courts indicating that the guidance was inappropriate.

That the decision in Williams related to an occupier, not an employer. Again correct. However, it is difficult to see why this should make any difference. In fact, given that TDN13 of 1969 was guidance issued in the context of employment, the converse might be more arguable. In any event, as above, it was the only available guidance.

The decision in Williams was per incuriam, in particular because reference was not made to observations in both Jeromson and Maguire which indicated that asbestos exposure should be reduced to the lowest level practicable. The problem with this argument, as pointed out by Mrs Justice Swift in the case of Abraham v. Ireson, is that the comments in Jeromson and Maguire were dealing with a different factual situation, that is cases where significant exposures were proved and the possibility of risk at least identified. On analysis, there is nothing in the judgments in the Court of Appeal in these two cases which would obviate the need, in accordance with conventional principles in relation to the tort of negligence, to prove that the Defendants should have identified a reasonably foreseeable risk of injury.

His Honour Judge Yelton refused permission to appeal and it remains to be seen whether the Court of Appeal will grant permission. Williams has been followed in a number of High Court cases now, including those cited in the judgment, that is McCarthy, Woodward and Smith and also in the case of McGregor v. Genco.

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Charles undertakes work in the areas of clinical negligence, industrial disease, personal injury & health, safety and regulatory work.
If you would like to contact Charles please email: charles.feeny@completecounsel.co.uk